Deed. Wm. Fuller to Jona. Wilkins.

Archelaus Fuller. Known the Place there 30 years. Wilkins mowed the Land, 1 or 2 Years. Orchard, runs down to the Edge of the Brook. 277The Water used to help the Land. But Fullers Dam and Mill there, immediately flowed this Land of Wilkins's and flowd over an high Way that we used to pass to Meeting. It flowd up into Wilkins's an Acre and ½ and round several Apple Trees—8 or 10. The Ice would tear the Turffs off, and threw it in Heaps and another sort of Grass and flaggs2 came in the room of it. A fine Apple tree, was killd by it, as I suppose. 3 Barrells of Cyder a Year. They cutt a 2d Crop, of good Hay before the flowage. There is a Load of Hay odds,3 worth 9 or 10 Pounds on an Average. The ground when the Water is drawn off is black as a Hat, and a bad Smell the latter End of May. No Mill there since my Remembrance.

Andrew Fuller. 8 or 9 Years since Fuller erected his Mill. Blue Grass before and the want of fresh Grass since. Apple trees, as good bearing Trees as ever known in an orchard. A Number of Trees gone to decay. A Sound Tree, that died. A large Body of Ice froze round it, and as the Water rose and fell the Ice rubbed the Bark off in several Places. The trees are all upon the decay, and now of little Value. Grass not half so good, as it was. Wilkins got about 2 Load, a Year. I suppose the Trees have been planted 40 Years. I remember before any of them Trees bore of apples.

Jacob Smith. Very good Grass better than 2 Load at 1st and 2d Crop. It has been flowd every Season, better than an Acre. The year before last and every Year before, I mowd it. The 1st Year after it was flowd there was little or no Hay, and very little at any Year since, not a Load. Imagine the Water kill'd the Trees. Bore 2 Barrells a Year upon an Average. A Load we put round the Edges.

Robert Pierce. The Ice tore up the Ground, about the Roots and the Tree died soon. The large Tree had the bark torn off, quite thro.

2 Witnesses about Cyder, Apples, Trees &c.

Porter. Trespass could not be maintained because the Plaintiff not now owner of the Land. Credibility of Witnesses &c.

Mr. Andrews. 69 years ago I helpd draw some Timber to that Mill dam. The Mill sawd Boards for our Meeting House and that is all I know. No Mill there these 50 or 60 years.

Mr. Chandler. It does not look as if any Thing grew on it.

Saml. Cheever.

Rob. Indian. Damages Land, to flow and not keep up the Pond all Winter.

Bart. Buxton. ½ an Acre flowd now as dam up. And the flowing the ½ Acre does more hurt than flowing the whole would all Winter.

Thos. Hart. About an Acre flowd.

Andrew Fuller. The freshit has removd a stick and Gravel and made a stop.

Porter. Persons interested not to be credited, and the most credible Witnesses to be believd.

Trees tarr'd. Denyd it.

Law regards not Trifles.

Serjeant. Uncertainty of the Witnesses about the Number of Years. Not the stench to Mr. Smith nor the damage to the High Way.

1st. as to damnifying the Grass. It may be attributed to the upper Mill. Jam4 Tree, overated.

Col. Fuller set it at 2 dollars a Year.

June 1771

Smith and Wilkins v. Fuller. Bacon Trespass 212. Continuando in trespass may be waved and evidence given of any trespass before the action.2

See 2 Barnardiston 120. Trespass for disturbance in freehold; title allow'd to be given in evidence by defendant and Comyns said that any possession longer than 7 or 8 years was evidence of it.3

This action is trespass for erecting a dam on plaintiffs land and flowing it from 1765. Evidence was offered of erecting dam in 1762, 279but objected to it as excluded by limitation Act. Answered that it's repealed. Judge Trowbridge seem'd to think it not repeal'd by the temporary law,4 and that on declaration for trespass done between 2 days certain, evidence was not admissible without5 those days.